[9]It is the responsibility of the Appellant company to ensure the P11Ds are filed by the due date. It cannot pass the responsibility to its agent. This Tribunal agrees with the decision of Judge Dr Christopher Staker in a First Tier Tribunal case Stewarton Polo Club Ltd v Revenue & Customs [2011] UKFTT 668 (TC) where he states at paragraph 14: ‘The Tribunal accepts that in cases where highly specialised advice is required, a taxpayer may have no choice but to rely on the advice of a specialist. However, in cases where no specialist advice is required, the Tribunal does not consider that a taxpayer can be absolved of personal responsibility to file returns and pay taxes on time through reliance on a specialist.’ 10. This Tribunal considers that completion of P11Ds does not require highly specialied advice. 11.
Judge Staker continued at paragraph 17:
[17]‘The Tribunal considers that the obligation to ensure that the return is filed on time is on the Appellant. If the Appellant uses an agent such as an accountant, the Appellant is in general under an obligation to ensure that the agent files the return on time. Failure of the agent to meet his or her obligations to the Appellant might entitle the Appellant to some recourse against the agent, but in the Tribunal’s view reliance on a third party such as an accountant cannot relieve the Appellant of its own obligation to file the P35 on time. The Tribunal does not accept that the bare fact that responsibility had been entrusted by the appellant to a third party of itself amounts to a reasonable excuse. ’ 12. Although the Stewarton Polo Club case related to forms P35, this Tribunal considers the same obligations apply to filing P11Ds. 13. HMRC maintain that there is no obligation on it to issue reminders or to notify employers that P11Ds had not been received prior to issuing a penalty notice and that there is no statutory obligation on it to issue penalty notices closer to the filing deadline. 14. The Tribunal accepts that it is the legal responsibility of the Appellant company to file the P11Ds on time and it cannot pass that responsibility to its agent. The Tribunal also accepts that, unfortunately, there is no obligation on HMRC to issue late filing penalty notices immediately after the due date. 15. In the case of The Commissioners for Her Majesty’s Revenue and Customs and Anthony Bosher [2013] UKUT 0549 (TCC) the Upper Tier Tribunal held that the scheme of the legislation coupled with the right to apply for judicial review does not infringe a taxpayer’s rights under the European Convention on Human Rights and the Human Rights Act 1998. The Tribunal also held that the penalties (subject to mitigation in any particular case) imposed by the regime in general are not disproportionate. 16. Although the case of Bosher concerned the Construction Industry Scheme this Tribunal considers the same principles apply to filing P11Ds. 17. Following the decision of the Upper Tribunal in Hok Ltd the Tribunal has no jurisdiction to discharge or adjust a fixed penalty which is properly due because it thinks it is unfair. 18. The Appellant company has not produced any reasonable excuse for the late submission of the P11Ds. As the P11Ds were between four and five months late the total penalties were correctly assessed at £500.00 19. The Appeal is therefore dismissed and the penalties totalling £500.00 remain due for payment. 20. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. ALASTAIR J RANKIN TRIBUNAL JUDGE RELEASE DATE: 11 June 2014